Reasonable adjustments: does a school have to adapt its behaviour policy for disabled pupils?

We look at the case of UW v Cheam Academies Network and explain what it means for schools and colleges when making reasonable adjustments. 

Facts

C, a 13-year-old boy with Autism and Attention Deficit Hyperactivity Disorder (ADHD), had an education, health and care (EHC) plan. The school initially refused him a place, but as it was later named in Section I of the plan it agreed to do what it could to make the placement successful.

The school issued C with 41 detentions, several fixed-term exclusions and, ultimately, a permanent exclusion. C's parent brought discrimination claims against the school under the Equality Act 2010, including a claim for failure to make reasonable adjustments. They argued that the school should have adjusted how it applied its behaviour policy to take account of C's disability.

The law

Section 85(2) of the Equality Act 2010 says schools must not discriminate against pupils:

• in how they provide education
• in how they give access to a benefit, facility or service
• by not providing education
• by not giving access to a benefit, facility or service
• by excluding the pupil
• by subjecting the pupil to any other detriment

Section 20 of the Equality Act 2010 sets out the duty to make reasonable adjustments. Schools must take reasonable steps to: 

1. Avoid substantial disadvantage where a provision, criterion or practice puts a disabled pupil at a substantial disadvantage compared to those who are not disabled
2. Remove or alter a physical feature or provide a reasonable means of avoiding such a feature where it puts a disabled pupil at substantial disadvantage compared to those who are not disabled
3. Provide an auxiliary aid where a disabled pupil would, but for the provision of that auxiliary aid, be put at a substantial disadvantage compared to those who are not disabled. 

Paragraph 2(4) of Schedule 13 of the Equality Act 2010 explains that the duty to make reasonable adjustments points 1 and 3 apply to schools in relation to deciding who to admit as a pupil, and the provision of education or access to a benefit, facility or service. 

First-tier tribunal 

At the start of proceedings, the first-tier tribunal (health education and social care chamber - special educational needs and disability) decided that the duty to make reasonable adjustments does not apply to school behaviour policies, including detentions or exclusions. 

It based this view on differences in wording between section 85(2) and paragraph 2(4) of Schedule 13.

The first-tier tribunal accepted that a detention could amount to ‘any other detriment’ under section 85(2). However, it decided that exclusions, detentions, and the behaviour policy itself do not fall within paragraph 2(4) of Schedule 13 for the purposes of reasonable adjustments, because that provision does not refer to them directly.

C's parent appealed. 

Upper tribunal

The upper tribunal accepted that section 85(2) lists more types of discrimination than paragraph 2(4) of schedule 13 does for the duty to make reasonable adjustments. At first glance, this suggests the duty may not cover anything not listed in paragraph 2(4) of schedule 13.

However, the upper tribunal rejected that interpretation when it read the legislation as a whole, alongside case law, explanatory notes and guidance.

It held that the duty to make reasonable adjustments does apply to a school's behaviour policy and how staff apply it, including sanctions up to and including permanent exclusion.

This is because under paragraph 2(4) of Schedule 13, the duty to make reasonable adjustments applies to schools in relation to the provision of education or access to a benefit, facility or service. The upper tribunal held that this includes the operation and application of a school's behaviour policy, including in relation to sanctions and exclusions. 

What does this mean for schools and colleges?

This case clarifies that you cannot take a ‘one size fits all’ approach to implementing pupil behaviour policies. If a pupil's disability affects their behaviour, you may need to adapt how you apply the policy. 

Make sure that staff understand when they may need to depart from the policy. You may therefore need to provide training so they can recognise when adjustments are required. 

Finally, make sure staff keep clear, written records of the adjustments they considered, the decisions they made and the reasons for those decisions. These records will be important if anyone challenges the decision.

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